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Criminal Law
University of California, Hastings School of Law
Little, Rory K.

Criminal Law – Spring 2013 Outline

The Functional and Procedural Bases of Criminal Law

Purpose of Criminal Law
·         deterrence
o   general à to set a standard
o   specific à against a precise individual
·         safety
·         justice
o   rests on a shared conception of what kinds of harm are most serious and what kinds of limits on freedom are justified
·         retribution/punishment
o   Kant: the role of punishment is retribution, which should be equal to the crime
§  guilt is a necessary and sufficient condition for the legitimate infliction of punishment
·         sends a message, rehabilitation
·          “harm to others” principle (Joel Feinberg) – the harm principle is the only valid principle for determining legitimate invasions of liberty
·         other theories: offense to others, harm to self, and harmless wrongdoing

Civil System
Criminal System
Direct compensation
No jail/prison time; Personal Liberty not at stake
Jail/Prison time allowed—Personal Liberty at stake
Private action between individuals
Public interest/community
Individual is the plaintiff
GOVERNMENT is the plaintiff*/ injured party is society
Lower standard of proof (preponderance of the evidence/clear and convincing evidence)
Higher standard of proof (beyond a reasonable doubt)

Hold Plaintiff’s atty/prosecutor (the government) in a criminal case to a higher standard because the Gov’t has an ethical responsibility to truth and the community

Standard of Proof in Criminal Proceedings
·         Due process requires proof beyond a reasonable doubt of every fact necessary to constitute the crime for a D to be found guilty of a criminal act (In re Winship, 1970, SCOTUS)
o   fact finder can never know what happens, will sometimes make an error
o   reflects fundamental value far worse to convict an innocent than to acquit someone who is guilty
§  rationale: precedent, history, widespread in the US, reflects comparative costs of mistakes in each type of proceeding, community confidence, liberty is at stake, stigma à society looks at you differently, individuals need confidence in the process
o   transformed criminal judgments into a federal question (can now petition SCOTUS)
§  federal issue: constitutional standard wasn’t met b/c evidence was insufficient to prove beyond a reasonable doubt
·         For all appeals, to determine whether sufficient evidence supports a conviction, the standard of review is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt (Jackson v. VA, SCOTUS, 1979)
o   results: usually, nothing for the D’s argument exists on appeal
o   to win on appeal, D must show government did not prove every element beyond a reasonable doubt
o   another way to look at it à in the light most favorable to the jury’s verdict
·         very few cases get overturned on the Winship appeal

Constitutional Safeguards – Notice, fair warning, “vagueness”
·         requires fair warning that something is a crime (State v. Stark)
o   Standard for Evaluation of a Statute: If persons of common intelligence must guess the statute’s meaning, then unconstitutionally vague.
§  State v. Stark (pp. 11-12) (1992) (WA): D’s defense: no intent, D did not understand that unprotected sex exposes HIV
·         witness said he said “if I’m going to die, everybody’s going to die”
·         using Jackson standard, evidence viewed in light most favorable to the state supports a finding of intent beyond a reasonable doubt
§  must give a reasonable person fair warning, if a reasonable person wouldn’t know, it is unconstitutionally vague
·         must be defined with precision – not vague
§  a person may not be punished for a crime unless act falls clearly within language of statute
·         Johnson v. State (pp. 13-14) (1991) (FL): mother took cocaine close to birth and it passed to baby; statute applies to drug dealers and minors –under law, a person comes into being upon birth à did not violate controlled substance delivery law
o   no ex post facto application – can’t prohibit conduct then retroactively apply the law
§  Keeler v. Superior Court (pp. 34-38) (1970) (CA): D stomps his ex-wife, resulting in the death of her fetus. Court determines CA code was not intended to cover feticide b/c of CL cases (person born alive was a human being)
·         although government argues that could have kept this baby alive, ct. says no:
o   the legislature should do this (oversteps judicial role otherwise)
o   constitutional – due process and notice concerns, judges can’t change the meaning of a statute and then retroactively apply it
·         CA legislature changes Homicide Statute (p. 260)
o   adds “or a fetus”
o   fetus must be more than 7-8 weeks (People v. Davis)
o   don’t have to know a woman is pregnant to be charged with murder of a fetus (People v. Taylor)
o   must publish laws
§  Shaw v. Dir. of Public Prosecutions (pp. 42-44) (1962) (UK): D convicted of conspiracy to corrupt public morals; appealed, arguing such crimes don’t exist; affirmed; different today


The Purpose of Punishment
·         We punish for things society disapproves of and do not punish things society values and wants to encourage – we see those as important areas of activity (i.e. consensual sex) that must be protected from government interference
·         Philosophy
o   Utilitarian – greatest good for the greatest number
§  justification of punishment depends on its good consequences for community
§  i.e. capital punishment is too expensive, so get rid of it
o   Retribution – someone deserves to be punished based on morality,
§  punishment is justified by consideration of moral blame
§  i.e. murderers deserve the death penalty

Standards of Punishment
·         Severity
o   questions of punishment involve questions of degree (how much to punish)
§  must consider the nature of the criminal and his circumstance
§  may also look at the type of offense and the likelihood of recidivism
o   general deterrence is a legitimate justification for imprisonment
§  United States v. Bergman(pp. 118-122) (1976) (NY): fraudulent Medicaid claims, Rabbi; rehabilitation is not the point of imprisonment
·         Sentencing “Guidelines”
o   Background
§  in the 1800s – mandatory, automatic executions
§  in late 19th century, legislatures began to set a range of penalties
·         in response to realization that sentences should be individualized
·         provided judicial discretion (so long as within range)
·         no oversight aside from public perception
§  in 20th century, Executive Branch began paying attention to psychological aspect (rehabilitation, good behavior, etc.)
§  Frankel: people who commit same crime with same background should have same sentence
·         no “unwarranted disparity”
·         developed into creation of sentencing guidelines
·         Sentencing guidelines vs. mandatory minimums
o   guidelines – prescribe a particular sentence or range and allow judges to deviate only when the case presents unusual aggravating or mitigating factors
o   mandatory minimums – prescribe minimum sentences for particular crimes and allow no possibility of deviation downward
·         Any fact, other than the fact of a prior conviction, that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.
o   Apprendi v.  New Jersey (2000) (SCOTUS): NJ law allowed hate crimes to double the guideline for a particular crime, judge determined crime was racially motivated by a preponderance of evidence
§  revolutionized sentencing
§  does not apply to penalties within the range set by the legislature
§  Facts subject to Apprendi rule: those that increase the maximum sentence
·         those that are bad for the D (likely)
·         prosecutors like that they have a constitutional obligation to prove these facts/motives
·         gives prosecutors a stronger hammer
o   Exception: prior convictions
§  Almendarez-Torres v. United States (1998) (SCOTUS): prior convictions would be prejudicial, not a valid fact on which to base sentencing increases
·         Apprendi applies to any fact that takes you out of the sentencing guideline range
o   Blakely v. Washington (2004) (SCOTUS): D is entitled to be sentenced within range, a fact that would take him out of the range must be found beyond a reasonable doubt and by a jury
§  Apprendi barred a WA state judge from imposing a sentence higher than standard range based on judge’s conclusion that D committed his crime with deliberate cruelty
·         Sentencing guidelines are unconstitutional under Apprendi (United States v. Booker (2005) (SCOTUS)); guidelines become “advisory” and discretionary

Proportionality – are there punishments so disproportionate to crime that they violate 8th Amendment?
·         Generally, SCOTUS doesn’t see the 8th Amendment as much of a limitation.
·         Rummel v. Estelle (1980) (SCOTUS): Life in prison with possibility of parole is not cruel and unusual punishment for a habitual offender convicted of passing bad checks.
·         Solem v. Helm (pp. 131-137) (1983) (SCOTUS): A criminal sentence must be proportionate to the crime for which the defendant has been convicted.
o   When sentences reviewed under 8th Amendment, courts should be guided by:
§  gravity of the offense and the harshness of the penalty
§  compare the sentences imposed on other crim

ow: D knows drugs are present and D knows drugs are illegal
·         Little: there is no instruction error –court must have been sympathetic
§  it is possible to have joint control over drugs
§  United States v. Lindsey (p. 162) (2004) (10th Cir.): D was traveling in tandem with a truck carrying drugs. D’s associate drove truck. Even though D was not physically in the truck, he exercised dominion and control over the truck and traveled with the truck, which gave him the power and intention to exercise control over the weapons and drugs.
·         shows how little evidence is needed for constructive possession

MPC § 2.01: Requirement of Voluntary Act; Omission as Basis of Liability; Possession as an Act (p. 142)
·         (1) not guilty unless liability is based on a voluntary act or the omission to perform an act of which he is physically capable
·          (2) an act is not voluntary if:
o   a reflex or convulsion
§  however, if seizure while driving and cause an accident, can be convicted
·         voluntary act is failure to prevent harm (i.e. choosing to drive)
o   a movement during unconsciousness or sleep
o   conduct during hypnosis or resulting from hypnotic suggestion
§  United States v. Phillips: shooting marshal at federal building while hypnotized, gets defense
o   if not a product of the effort or determination of the actor
§  People v. Newton (pp. 143-144) (1973) (NY): NY law on loaded gun is a strict liability crime, but D was acquitted b/c he didn’t voluntarily enter the US (even though he was unruly and caused plane to land at JFK).
·         (3) liability may not be based on an omission without action, unless:
o   omission is made sufficient by the law defining the offense
o   a duty is imposed by law (even if tort law)
·         (4) possession is an act if possessor knowingly procured or received the thing possessed or was aware of his control thereof for a time sufficient to terminate possession

“Status” Crimes – cannot convict someone based on their status; no consensus on what qualifies as a “status”
·         Not Registering as a Felon
o   Lambert v. California (pp. 216-219) (1957) (CA): Convicted for not registering as a felon in LA is overturned because not registering is passive, it is not an act.  
§  Also, because of constitutionality concerns: due process requires notice.
·         Actual knowledge of the duty or proof of the probability of knowledge is required before conviction.
o   Ignorance of the law can be a defense in some situations.
·         This is only a municipal code provision (what is a misdemeanor in another state but a felony in CA, have to register à it must be more than just on the books for notice)
§  no other case follows this line of thinking except Bartlett v. Alameida (p. 220) (2004) (9th Cir.): Reversed conviction for failing to reregister as a sex offender because D was unaware that his duty to register was lifelong.
·         D is entitled to present evidence that he did not know of his duty. If jurors believe the evidence, they are required to acquit in accordance with Lambert.
·         Addiction
o   Robinson v. California (pp. 163-164) (1962) (SCOTUS): CA statute makes it a crime to be addicted to narcotics; violates 8th Amendment b/c punishes someone for something they can’t control (merely having a condition).
§  **only says you can’t punish, not it can’t be a crime à maybe if rehab, this would be ok
o   Powell v. Texas (p. 164) (1968) (SCOTUS): Court refuses to extend Robinson to alcoholism.
§  D tries to argue alcoholism is an addiction, so can’t put him in prison.
§  Ct. says the voluntary act is taking the first drink.
·         expanding Robinson would open door to other “illnesses” (i.e. kleptomania, pyromania)
§  Statute didn’t criminalize being an alcoholic but rather for behavior in public.  
·         being in public is an act!